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Criminal Appeal No. 70 of 1968, decided on 6th June 1969.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 13th December 1966, in Criminal Appeal No. 703 of 1966).

S 417‑--Appeal from acquittal--‑State has right to appeal both on facts and Law ---Refusal of High Court to interfere with acquittal on ground that order could be interfered with only if "appreciation of evidence by trial Judge is perverse and foolish"‑--No such limitation, held, could be spelt out from provisions of S. 417‑--Penal Code (XLV of 1860), S. 302.

Where the High Court dismissed an appeal from acquittal in limine by expressing the view that the High Court will interfere with an order of acquittal only if the appre ciation of evidence by the trial Judge had been perverse or foolish :

Held, the State has under section 417 of the Code of Criminal Procedure the right to appeal from an order of acquittal both on facts and law. It is, therefore, not permissible to read into section 417 the words of limitation employed by the High Court. A practice has, however, grown that a Court of appeal will not interfere with an order of acquittal if the evidence is on to the view formed by the trial Court. In other words the' order of acquittal will not be set aside on grounds of appreciation of evidence alone. This view, however, is not correct. If the reasons given by the trial Judge are of speculative and artificial nature or the findings recorded by him are based on no evidence or misinterpretation of evidence or the conclusions drawn by him about the guilt or innocence of the accused person are perverse or foolish resulting in miscarriage of justice the Court of appeal will in such a case re‑examine the evidence and draw its own conclusions from it.

S. 302‑--Sentence--- Mitigation--‑Accused acquitted by trial Court--‑Appeal from acquittal dismissed by High Court but order of acquittal set aside by Supreme Court and accused convicted of offence under S. 302 Capital sentence, in circumstance, not awarded.

S. 302--‑Murder committed on public road‑--Passersby are natural witnesses.

Appellant in person.

Dr. Tassaduq Hussain, Senior Advocate Supreme Court instructed by Wajid Hussain, Senior Attorney for Respondent No. 1.

Raja Said Akbar Khan, Advocate‑General West Pakistan (R. S. Sidhwa, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State.

Dates of hearing: 28th and 29th April 1969.

Muhammad Sharif, respondent, was tried along with four others under sections 148, 302 and 201 read with section 149, P. P. C. for forming an unlawful assembly and rioting in the course of which Kamir, father of Ghulam Muhammad, appellant, was killed and his body after being cut into pieces thrown in the distributory of a canal to destroy the evidence of crime. There were six eye‑witnesses and a number of incriminating recoveries made from three of the accused persons including Muhammad Sharif, respondent. The trial Judge treated Shahadat, as a chance witness and discarded the testimony of the other five eye‑witnesses in view of their relationship with the deceased and the background of enmity between the complainant and the accused parties. In the result the accused were acquitted from which the State filed an appeal under section 417 of the Code of Criminal Procedure in the High Court. The appellant too filed a revision petition complaining that in view of the overwhelming evidence of crime produced by the prosecution against the accused persons their acquittal was wholly unjustified. Both the appeal and the revision petition were dismissed in limine by a Division Bench on the view that the appreciation of evidence by the trial Judge was neither perverse nor foolish to call for interference in an appeal against acquittal.

Leave to appeal was granted against Muhammad Sharif, respondent, alone as among other recoveries made from him two empty cartridges recovered from the spot were found by the Ballistic Expert to match with the gun produced by him in the course of his interrogation by the police.

The following facts appear on the record. The parties belong to Chak No. 208, District Jhang. Muhammad Sharif, respondent, and his co‑accused are related inter se. Enmity existed between them and Kamir, deceased, on two counts. About 2 years before the present occurrence Waryam son of Gehna and Waryam son of Jalla were murdered. The first‑named was an uncle of Muhammad Sharif, respondent, and a niece of the second‑named was married to him. Humayun, accused, is the son of Waryam son of Jalla and Mahni, accused, is his nephew. The grandfather of Haq Nawaz, accused, and Waryam son of Jalla were brothers. Kamir, deceased, along with Karam Ali, Noor and Ahmad (P. Ws.) were challaned for the murder of two Waryams and acquitted. After a while Kamir, deceased, fired at Muhammad Sharif, respondent, and wounded him. He was prosecuted along with others for the murderous assault, but was ultimately acquitted. On the 25th June 1965, one Mst. Jawai of Chak No. 208 died. As the graveyard of this Chak is situated in the neighboring Chak No. 195 her dead body was at about degarwela taken there in a funeral procession. Kamir, deceased, who was at that time taking bath on a well told Karam Ali, Noor and Ahmad (P. Ws.) that they should follow the procession and he would join them soon. Karam Ali, Noor and Ahmad (P. Ws.) had reached the dhari of Nanak situated on the road side, when Kamir, deceased, riding a bicycle overtook them. He went a few karams ahead when the five accused came out of a maize field and hurled abuses on him. The deceased got down from the cycle and returned the abuses. Thereupon Muhammad Sharif, respondent, fired from a shot gun at Kamir, deceased, who was bit in the chest and fell down. Muhammad Sharif then came nearer and fired at Kamir from a point blank range in the head which killed him instantaneously. The remaining accused persons then carried the dead body of Kamir, deceased, to a nearby beri tree where Panah, removed the loin cloth of the deceased and tied his dead body in it. Haq Nawaz picked up a branch of a tree and swept the place where the deceased had fallen after receiving gunshot injuries. He also took away the bicycle of the deceased and followed the other accused in the direction of their village to the Karam Ali, Ahmad and Noor (P. Ws.) witnessed the occurrence from a distance of 14 karams. Muhammad and Shahadat, P. Ws., who were on their way to Chak No. 208 had also arrived in the meantime. They raised an alarm, but were scared away by Muhammad Sharif who aimed his gun at them and threatened to shoot if any one dared to intervene. After the accused had left carrying with them the dead body of Kamir, Karam Ali went to his village leaving bahind Ahmad and Noor on the spot and informed the relatives of the deceased about the occurrence. Having done so he proceeded to the Police Station, Showana, 16 miles away to lodge the first information report.

As evening had fallen by then, Karam Ali lost his way in the bed: of the old river which was overgrown with bushes. Eventually, he reached Ramana Bridge at 1 a.m. where Gulzar Hussain and Allah Ditta. Head Constables, were present along with some Foot Constables on nakabandi duty. Karam Ali lodged the information report Exh. P. A. with Gulzar Hussain who despatched it to the Police Station through a Constable and himself proceeded to the spot reaching there at 4‑30 a.m. On their arrival Karam Ali pointed out to Gulzar Hussain the places where Kamir was shot dead and where his dead body was tied in the loin cloth. Blood‑stained earth was taken into custody from both the places. Two empty shells were also found from near the spot and made into a sealed parcel.

The accused were arrested on 27‑6‑1965. In the course of his investigation Muhammad Sharif, respondent, produced a gun licensed in his name which was taken into custody and made into a sealed parcel. A blood‑stained hatchet and piece of wood was also recovered at his instance from inside his house. He further led the Police to his dhari from where a block of wood, used for chopping, stained with blood, was recovered. Lastly, Muhammad Sharif took the police to the distributory of the canal in which he along with his co‑accused had thrown the dead body of Kamir, deceased, after cutting it into pieces. Muhammad Masud Khan, S. H, O., P. W. 17, sent divers into the water who failed to recover the body of the deceased, but found a shirt and a turban containing currency notes of the value of Rs. 21 from near the bank stuck up in the chappals usually fixed along the canal bank to stop erosion. Some pieces of bones on which were stuck hair stained with blood and blood‑stained grass was taken into custody at some distance from the canal. Haq Nawaz, accused, produced the broken parts of a cycle from underneath a heap of fodder lying in his hut, while Panah, accused, led the Police to his fields and produced from there a tal (khais) placed on the back of the mare on which the dead body of Kamir, deceased, was carried to the canal. The tal was stained with blood.

During the trial the prosecution produced Karam Ali, Noor, Ahmad and Shahadat as eye‑witnesses who deposed to having seen the first part of the occurrence as narrated above. The recoveries made at the instance of the accused were proved by Walidad (P. W.) and Muhammad Masud Khan, S. H. O. The Ballistic Expert gave the opinion that the two empty cartridges received by him on 1‑7‑1963 matched with the gun received in the Forensic Science Laboratory on 9‑7‑1963. The prosecution also led evidence of motive to which reference has earlier been made.

The accused adopted the plea of bare denial and attributed their implication to enmity on the part of the prosecution witnesses. No evidence was led in defence.

The trial Judge ruled out the ocular evidence examined by the prosecution on the grounds that (i) the behaviour of the eye witnesses was highly improbable in allowing the assailants to take away the dead body of the deceased in their presence ; (ii) Shahadat was a chance witness ; and on a mission which was never completed by him ; (iii) the first information report was belated and the explanation given by Karam Ali was not trustworthy ; (iv) it was doubtful if Kamir, deceased, and Karam Ali, Noor and Ahmad, P. Ws., would join the funeral procession of Mst. Jawai, because her son‑in‑law was prosecuted for committing rape on Mst. Fatima, wife of a nephew of Kamir, deceased ; (v) the "most important circumstance which struck at the root of the case" was that the accused were said to have concealed themselves in a maize crop, but the Investigating Officer did not inspect that field which would have disclosed whether there were any trampling marks in the field or not ; (vi) Shamun, the owner of the cycle, was not produced by the prosecution and in his absence it could not be safely concluded that the deceased had arrived at the spot riding a cycle ; (viii the recovery of the clothes of the deceased from the canal was a "strange thing". These were recovered at a distance of twenty‑five karams from the place where the dead body was thrown in the canal. It did not "appeal to common‑sense" as the parts of the body of the deceased were not recovered which had some weight and should have settled down at the bed of the canal, but clothes which are lighter and would be swept away by water were found near the canal bank ; (viii) the recovery of currency notes of the value of Rs. 21 from the pocket of the shirt of the deceased was unreliable as their numbers appeared to have been rubbed with fingers in order to indicate that they had remained submerged in the water ; and (ix) the crime shells recovered from the spot on the 26th June 1965, were received by the Arms Expert on the 1st July 1965, which was contrary to the rules. In this view the plea raised by the defence that empty shells were fabricated by the Police after the recovery of the gun was more plausible. The recovery of the blood‑stained earth and bones from various places as well as other recoveries were also considered to be of no value to the prosecution as "these articles have not been identified to be these of Kamir, deceased." Walidad who witnessed the recovery was held to be unreliable as having gone to the Police in connection with the theft of his mare.

As seen, the learned Judges in the High Court dismissed the appeal preferred by the State as well as the revision petition filed by Ghulam Muhammad, appellant, in limine in agreement with the trial Judge that Karam Ali, Ahmad and Noor, P. Ws., were not only interested, but were also inimical towards Muhammad Sharif, respondent. Shahadat was a chance witness and the fact that he did not complete his mission, namely, borrowed money from Noora Sipra rendered it doubtful if he was at all present at the time of occurrence. In this view the appraisal of evidence by the trial Judge was held to be neither perverse nor foolish to call for interference in an acquittal appeal.

We have examined with the assistance of the learned counsel the entire evidence on the record and come to the conclusion that the reasons on which the order of acquittal by the trial Judge rests are largely speculative and in one respect based on inaccurate reading of evidence. It was unrealistic to assume that the eye‑witnesses should have chased the culprits one of whom was armed with a gun and had before their eyes killed Kamir. It is also in evidence that when they raised an alarm, Muhammad Sharif, respondent, aimed his gun towards them which scared away Shahadat, etc.

It is true that Shahadat, P. W., is a chance witness, as he did not reside near the place of occurrence, but when crime takes place on a public road, passersby are the natural witnesses. In testing the testimony of Shahadat, P. W., the question which arises for consideration was whether he had any motive of his own to falsely implicate the accused persons. No such motive was established on the record. On the contrary the trial Judge rejected his evidence for the reason that he did not complete the mission on which he was going for Chak No. 208 when on the way he along with Muhammad witnessed the occurrence. Shahadat deposed that he went to the house of Noora Sipra, but as he was not present there, he left without entering his dera or mentioning his mission to the sons of Noora Sipra. The evidence of Shahadat was also criticised on the ground that Muhammad who accompanied him was not produced by the prosecution. It was ignored from consideration that Muhammad was present in Court and was given up by the Public Prosecutor for having been won over by the defence.

There was also no delay in lodging the first information report. Even if there was some delay it did not in the circumstances of the case affect the truth of the information laid by Karam Ali, P. W., with Gulzar Hussain, Head Constable, at 1 a.m. near Ramana Bridge. It is wrongly assumed by the trial Judge that the report was made at 3‑30 a.m. After the statement, Exh. P. A., was recorded by Gulzar Hussain, Head Constable, he sent it to the Police Station, Bhowana, through a Foot Constable, where it was registered at 3‑30 a.m. as Exh. P.A./1. After recording the statement Gulzar Hussain immediately left for the place of occurrence and reached there at 4‑30 a.m. In paragraph 27 of the judgment it is stated: "The report was lodged at 3‑30 a.m. next day. The place where the report was lodged, is seven‑eight miles from the spot. Even if four‑five hours are given to the complainant for reaching the place of report, then the report should have been lodged before mid‑night. The complainant tried to explain the delay by saying that he had to cross the sem and Jungle etc. and lost the way in the darkness, but I do not know that he had succeeded in his effort. The Head Constable who recorded the report at 3‑30 a.m reached the spot at 4‑30 a.m. i.e. within one hour". The premises on which this conclusion is based is thus entirely erroneous for the information report was made at 1 a.m. and not 3‑30 a.m.

The inference drawn by the trial Judge that Kamir, deceased, and his relatives Karam Ali, Ahmad and Noor (P. Ws.) were not likely to join the funeral procession of Mst. Jawai is equally incorrect. If Shamun son‑fn‑law of Mst. Jawai had committed rape on Mst, Fatima, wife of a nephew of Kamir, deceased, then Afst. Jawai . herself would be as much aggrieved by the conduct of Shamun as the relatives of Mst. Fatima. There is nothing on the record to indicate that after this unfortunate incident Mst. Jawai continued to have good relations with Shamun or that the relations of Kamir, deceased, became strained with Mst. Jawai.

As to "the most important circumstances" that the Investigating Officer did not inspect the maize crop where the accused persons had concealed themselves it is sufficient to observe that it betrayed the ignorance on the part of the trial Judge that maize plants are sown at a good distance from one another for better growth and yield. There was thus no likelihood of the maize field being trampled which the Investigating Officer could not have failed to inspect.

The discarding of the incriminating recoveries by the trial Judge more particularly those made from Muhammad Sharif, respondent, was also wholly unjustified. The two empties were recovered by Gulzar Hussain, P. W. 18, on the morning of the 26th June 1965. He made them into a sealed parcel which was carried by Muhammad Fazil, P. W. 7, Foot Constable, with the seals intact to the Police Station and deposited there on the 27th June. On the 28th June, he took the parcel to the Office of the Superintendent of Police at Jhang and after obtaining the docket addressed to the Arms Expert he came back to the Police Station, Bhowana, and left for Lahore on the 29th June 1965. The parcel was received by Shah Jehan Khan, Fire Arms Expert, in the Forensic Science Laboratory, with its seals intact and kept there in safe custody. Muhammad Sharif, respondent, was placed under arrest by Muhammad Masood Khan, S. H. O., on the 27th June 1965. His clothes appeared to be blood‑stained, but had been washed. While in custody he led the S. H. O., to his house and from there produced hatchet (Exh. P. 2) on which were sticking some hair and a piece of wood (Exh. P. 5) from a bin. Both the articles were stained with blood. They were sealed into separate parcels in the presence of Walidad son of Waryam, Karam Ali son of Shada and Sher son of Inayat. Muhammad Sharif next produced his shot gun, Exh. P. 1 and Licence Exh. P. 6 which were taken into possession vide memorandum Exh. P.D. The gun was sealed in a parcel and along with other articles sent to the Police Station on the 5th July 1968. The parcel containing the shot‑gun was received by the Forensic Science Laboratory, on the 9th July 1965. The seals on these parcels were found by Shah Jehan Khan intact. The test cartridges fired from the shot‑gun P. 1 were found to match with the crime shells Exhs. P. 24/1‑2. The following points of similarity were noticed

"(1) There were breach face marks shown at points A and F.

(2) There were two dents shown at points B and D.

(3) There were two ridges shown at points C and E.

(4) There was elevation shown at point G."

These points of similarity were borne out by the photomicrograph Exh. PAG The ‑only question asked by the defence counsel in cross‑examination was whether Arms Expert could determine the time when the crime shells were fired. The answer was in the negative.

The report of the Chemical Examiner, Exh. PAC., appears at pages 192‑193 of the Paper Book. It was deposed by him that all the parcels received through Manzoor Hussain, Foot Constable, were found intact. The Exhs., consisting of earth recovered from the spot where Kamir was shot dead ; earth recovered from under the beri tree where his dead body was dragged and tied in, a loin cloth ; the shirt and chaddar of Muhammad Sharif, respondent ; the hatchet with hair sticking to it recovered from his house ; the mudhi with hair sticking to it taken into custody from his dhari and the earth recovered from a pit nearby were found to be stained with blood which according to the report of the Serologist at pp. 211‑212 was of human origin. Some of these recoveries were photographed by Ghulam Muhammad, P. W. 3, a private photographer, sent for by the investigating Officer from Jhang. The photographs are Exhs. PT/1, PT/2, PT/3 and PT/4. The first of these photographs shows Muhammad Sharif, respondent, pointing out the place where the dead body of Kamir, deceased, was thrown in the canal. The next photograph shows a piece of cloth and scattered bones which were found stained with human blood. Ghulam Muhammad was an independent witness and the learned Judges in the Courts below have completely ignored the effect of his testimony.

Walidad, P. W. 16, who attested the recovery memorandums lives in Chak No. 227 at a distance of five miles from Chak No. 208. He went to Muhammad Masood Khan, S. H. O., in connection with the theft of his mare and at his instance witnessed the recoveries mentioned above. He neither knew Karam Ali, complainant, or the accused persons, nor was on visiting terms with either. He did not know even any one of their relatives. The suggestion that Kamir, deceased, had appeared as a witness in a water dispute for him was repudiated and nothing was brought on the record to substantiate the suggestion. Walidad was thus a wholly independent witness and the fact that he had gone to the S. H. O., in connection with the theft of his mare did not make him a stock police witness to discredit his testimony. There was also the testimony of Gulzar Hussain, Head Constable, and Muhammad Masood Khan, S.H.O., who made these recoveries. Gulzar Hussain was not asked a single question in cross‑examination to cast doubt on the genuineness of the recoveries made by him while the only meaningful question asked from Muhammad Masood Khan regarding the recoveries made by him was that he did not call any member of the Basic Democracies or a lambardar from the nearby village to witness the recoveries. The evidence of Walidad, Gulzar Hussain and Muhammad Masood Khan in proof of the recoveries made from Muhammad Sharif, respondent, as well as the other two accused was, therefore, ruled out by the trial Judge without any cogent reason. Then there was the evidence of the Ballistic Expert that the crime empties matched with the shot‑gun Exh. P‑1 produced by Muhammad Sharif, respondent. The genuineness of these recoveries is beyond dispute.

The crime empties reached the Forensic Science Laboratory, Lahore, on the 1st July 1965, while the shot‑gun produced by Muhammad Sharif, respondent, was taken, to the Police Stations on the 5th July 1965, and reached the Forensic Science Laboratory on the 9th July 1965. The doubt expressed by the trial Judge in, regard to the genuineness of the crime empties was, therefore, not based on evidence, but as observed in Siraj Din v. Kala and another in the mind of Court rather than in matters established by evidence.

The suggestion that no one had witnessed the murder of Kamir, deceased, is belied by the circumstances attending on the crime. If it was an unwitnessed crime, then Karam Ali, P. W., would not have been in the position to make the information:, report at 1 a.m. to Gulzar Hussain, Head Constable,. and lead him to the place of occurrence at night wherefrom blood‑stained earth was recovered at two places. Then. there were the recoveries from the house of Muhammad Sharif, respondent, from his dhari and tile canal bank which corroborated the report that the dead body of Kamir was taken by the accused in the direction of their village. The irresistible conclusion which follows from the circumstances is that Karam Ali, P. W., was present when Kamir, deceased, was done to death.

The view expressed by the learned Judges that High Court will interfere with an order of acquittal only if the appreciation of evidence by the trial Judge is perverse or foolish is not correct. The State has under section 417 of the Code of Criminal Procedure the right to appeal from an order of acquittal both on facts and law. It is, therefore, not permissible to read in section 417 the words of limitation employed by the learned Judges. A practice has, however, grown that a Court of appeal will not interfere with an order of acquittal if the evidence is open to the view formed by the trial Court. In other words the order of acquittal will not be set aside on the grounds of appreciation B of evidence alone. But if the reasons given by the trial Judge, are of speculative and artificial nature or the findings recorded by him are based on no evidence or misinterpretation of evidence, or the conclusions drawn by him about the guilt or innocence of the accused person are perverse or foolish resulting in miscarriage of justice the Court of appeal will in such a case re‑examine the evidence and draw its own conclusions from it.

Having examined the record we have clearly formed the opinion that Muhammad Sharif, respondent, has been guilty of the murder of Kamir, deceased. The appeal is, accordingly', allowed and he is convicted of the offence under section 302, C P. P. C. The ordinary penalty for the offence of murder is death but since he was given expectation of life as far back as 12‑5‑1966 when the trial Judge passed the order of acquittal, we sentenced him to transportation for life.

Orders accordingly.

K. B. A. Appeal accepted.

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